The Right Prescription

Dems Sue Trump for Abiding by Obamacare on Subsidies

If it’s “the law of the land” let them live with it as written.

Beltway Democrats never tire of telling us that Obamacare is “the law of the land.” It appears, however, that their state level accomplices failed to get the news. One day after the White House announced that cost sharing reduction (CSR) payments to insurers would stop, Democrat attorneys general from 18 states and the District of Columbia filed a lawsuit for the purpose of forcing the Trump administration to pay the subsidies. A federal court has ruled these CSR payments unconstitutional, and the U.S. Attorney General has concluded that they violate the statute itself. Thus, Trump is merely upholding the law.

So, if Obamacare is the law of the land and the President is studiously upholding it, what’s the problem? For the 19 AGs involved, as with Democrats everywhere, it’s all about the Benjamins. If they abide by the text of the “Affordable Care Act,” they will lose a chance to pick the taxpayer’s pocket for $7 billion a year. Given the choice between pulling off such a lucrative heist and following the letter of the law, no Democrat breathing would follow the latter course. The AGs don’t admit that, of course. Instead, their complaint resorts to the tried and true tactic of pretending that the law doesn’t mean what it says:

By amending 31 U.S.C. § 1324, the ACA created a permanent appropriation for both premium tax credits and CSR subsidies. As a result, the Executive Branch has both the authority and the obligation to make premium tax credit and CSR payments to insurers on a regular basis. No further appropriation from Congress is required.

This is a work of fiction. As U.S. Attorney General Jeff Sessions phrased it in an October 11 letter to the secretaries of Health & Human Services (HHS) and Treasury:

[T]he plain reading of the text is that the ACA permanently appropriated money for section 1401 premium tax credits, but not for section 1402 CSR payments to insurers … The ACA’s amendment to the permanent appropriation in 31 U.S.C. § 1324 refers only to section 1401 tax credits …

U.S. District Judge Rosemary Collyer reached the same conclusion last year when she ruled the CSR payment scheme contrived by the Obama administration unconstitutional:

The Affordable Care Act unambiguously appropriates money for Section 1401 premium tax credits but not for Section 1402 reimbursements to insurers. Such an appropriation cannot be inferred.… Paying out Section 1402 reimbursements without an appropriation thus violates the Constitution.

Judge Collyer also pointed out that the actions of Obama administration officials suggest they knew there was no permanent appropriation for CSR payments in the health care law, noting that HHS “sought an annual appropriation for Section 1402 reimbursements” in its FY 2014 budget. They obviously would not have done so if they believed the CSR spending was already authorized. Indeed, it was only after the Republicans regained their congressional majority and refused to fund the CSR subsidies that the Obama administration began making the claim that the subsidies were part of a permanent appropriation.

The state AGs have studiously ignored this problematic legal history, of course. And, a decade ago, their lawsuit would not have been taken seriously. But that was before the federal courts, including the U.S. Supreme Court, began handing down rulings on Obamacare in which the language of the law has been disregarded in order to defer to some imagined congressional “intent.” In a judicial environment so unmoored from statutory text, virtually anything can happen. Yet Jonathan Turley, one of the nation’s most respected constitutional scholars and by no means a White House flack, writes that the law is on Trump’s side:

He rescinded an unconstitutional order by President Obama and restored the authority of Congress over the “power of the purse.” The response… has been a call for a rather curious challenge where Democrats want the judicial branch to enjoin the executive branch from recognizing the inherent authority of the legislative branch.

Turley concludes that the lawsuit against the Trump administration “would have baffled the Framers.” Those gentlemen would also have taken a dim view of the deceptive rhetoric of the attorneys general involved in the suit. California’s AG, Xavier Becerra, is leading the charge on the lawsuit and tweeted the following on Friday: “As I said on @BloombergTV moments ago: President #Trump’s decision to undermine the #ACA is intentional, sabotage, real and costly.” In the press release announcing the lawsuit, which was filed in the Northern District of California, he doubles down on his disingenuous claims:

Taking these legally required subsidies away from working families’ health plans and forcing them to choose between paying rent or their medical bills is completely reckless. This is sabotage, plain and simple. I and many of my attorney general colleagues will fight vigorously to ensure Californians and all Americans as taxpayers receive the healthcare the law provides.

If Becerra’s actual goal was to ensure that the taxpayers receive justice, he would be applauding President Trump instead of suing him. The Obama administration quite literally stole money from the Treasury to bribe insurers with these illegal CSR payments. This was done over the objections of Congress as well as the reservations of Obama’s own IRS officials. Now that he has made good his escape, his accomplices at the state level are left holding an empty bag. As we say below the Mason-Dixon Line, I hate it for them. If Obamacare is indeed the law of the land, let Becerra and his fellow AGs live with it as written.